R. v. Kang-Brown, 2008 SCC 18

In a complex and divided decision, the Supreme Court of Canada considered the constitutionality of using sniffer dogs to confirm a police officer’s suspicion that a suspect is in possession of narcotics.

The case at hand involved an individual who gave police an “elongated stare” upon disembarking from a bus at a transit station. This aroused the suspicion of the police, who were engaged in a special operation to detect drug couriers. One officer approached the suspect, began questioning him, and asked to look in his bag. The suspect apparently began unzipping the bag, but when the police officer moved to touch it, he pulled it away, looking nervous. A sniffer dog was then deployed, and indicated the presence of drugs in the bag, prompting police to arrest the suspect.

The Supreme Court concluded by a 6-to-3 majority that the use of a sniffer dog in these circumstances constituted a search, and that the search constituted a breach of the suspect’s rights under Section 8 of the Charter. On this basis, the majority excluded the evidence against the accused, pursuant to Section 24(2).

The Justices differed, however, in the way they reached this conclusion. Justices LeBel, Fish, Abella and Charron found that there was no common law power to deploy a sniffer dog on the facts of this case. Chief Justice McLachlin and Justices Binnie, Deschamps and Rothstein, who disagreed in their disposition of the case, concluded that such a common law power does exist, but that it is subject to a standard of “reasonable suspicion”.

McLachlin and Binnie, who wrote the “middle ground” decision in this case, articulated the reasonable suspicion standard as follows:

“The “reasonable suspicion” standard is not a new juridical standard called into existence for the purposes of this case. “Suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable” suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. Because sniffer-dog searches are conducted without prior judicial authorization, the after-the-fact judicial scrutiny of the grounds for the alleged “reasonable suspicion” must be rigorous. Here, the police action was based on speculation.”

The reasonable suspicion standard was subsequently adopted unanimously by the Supreme Court and applied to sniffer dog searches in R. v. Chehil, 2013 SCC 49 and R. v. MacKenzie, 2013 SCC 50

Decided by the Supreme Court of Canada on April 25, 2008.
Click here for the full text of the decision.

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Filed under Section 24: Enforcement of Rights, Section 8: Search & Seizure

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